Obamacare Courts Death Yet Again

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”Read More.

Just as those of us who covered the Affordable Care Act were investigating new topics to cover, the Supreme Court yanks us back in. Today they agreed to hear a set of cases involving the availability of insurance subsidies on federally operated insurance exchanges. (I will henceforth refer to this collective body as the Halbig case for ease of reading.)

Sounds kind of boring, right? Actually, this could severely damage, even potentially kill, Obama’s signature program. I won’t recap all the issues that an adverse ruling would create for our health-care overlords, but if you are interested in the details, read my write-up from this summer. For the rest of you, suffice to say that this case could ultimately determine whether the program survives, and if so, in what form.

The law’s supporters are dismayed, and no wonder. There’s currently a circuit split on the issue, but the court that ruled against the administration agreed to review it en banc -- that is, with a full panel of judges, rather than the smaller three-judge panel that originally heard the case. That court is now packed full of liberal judges, thanks to outgoing Senate Majority Leader Harry Reid’s decision in November 2013 to nuke the filibuster for presidential appointees. The administration was hoping that the en banc ruling would resolve the circuit split, and the Supreme Court would simply decline to take the case. The Supreme Court has decided not to wait.

Meanwhile, by granting cert, the Court is signaling that at least four judges are probably prepared to rule against the government. Now, maybe they’ll change their minds later. But I doubt it.

I’m not going to prognosticate about how they will rule, and I will point and laugh at any journalist who tries to punditsplain to the Supreme Court that they can’t, or conversely, that they must, a class of article that you might categorize as “predictive exhortation.” The actual forecast value of these sorts of articles is pretty low; it’s at best reminiscent of high school student government meetings. The Supreme Court’s gonna do what the Supreme Court’s gonna do, and they’re probably not much interested in my expert legal analysis.

It is safe to say, however, that the government is going into this round with a significantly weaker hand than it had even a few months ago. The law remains unpopular, and no, I don’t want to hear your explanation about how actually it’s really popular if you look at the polls right. The past election created unified control of Congress, which means there’s a reasonable chance of repealing or fixing the law in the face of an adverse ruling -- though not easily, and only over the screaming protests of President Obama and the Democrats, who will be outraged at what Republicans will demand. Also, since the initial Halbig ruling, evidence has emerged that at least one pro-Obamacare reporter, Jonathan Cohn of the New Republic, believed during the negotiations that the subsidies would only be available on state exchanges. The argument that no one reasonable can ever possibly have ever thought that this was the case has basically collapsed, though that won’t necessarily stop the administration from making this argument anyway.

That still leaves this far from a slam dunk. Like I say, the Supreme Court is gonna do what the Supreme Court is gonna do. The rest of us will just have to wait and see.

It’s not secretly popular if you just poll the individual parts.&nbsp; Individual parts are popular, but other parts -- the costs -- are not popular.&nbsp; It’s like saying my household really wants to go to Per Se because the only thing that polls badly in our budget meetings is the eventual bill.&nbsp; And no,&nbsp;it’s not&nbsp;unpopular because a bunch of lefties want it to be even more liberal, either.

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Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”Read more